Excerpt:constitution - pre emption - article 19 (1) (f) of the constitution of india - claim based on custom - custom itself is inconsistent with fundamental custom - held to be void and suit based on such custom not maintainable. - - the learned single judge, whilst expressing the opinion that there seemed no good ground upon which the decision of the supreme court could be avoided, nevertheless thought it proper to refer the matter to a larger bench......restriction on the rights guaranteed under article 19(1)(f) of the constitution must, therefore, be held to apply equally to a case where the claim for pre-emption is based on a custom of vicinage. in our opinion, therefore, the decision of the supreme court in the aforesaid case fully covers the present case. indeed, a look at the judgment of the supreme court makes it clear that the question of claims based on custom was also considered and there is nothing in that judgment to indicate that their lordships of the supreme court were inclined to a different view in respect of claims founded on custom. the result is that the custom on the basis of which the present claim was founded cannot be enforced. the preliminary objection raised on behalf of the defendant-respondent must,.....

Judgment:

Gupta, J.

1. This is a plaintiff's second appeal arising out of a suit for pre-emption on the ground of vicinage. The suit had been filed before the Constitution of India came into force. When this second appeal came up for hearing before a learned single Judge of this Court objection was raised on behalf of the defendant-respondent that the claim set forward could not be decreed by reason of the fact that a custom of pre-emption on the ground of vicinage constituted violation of the respondent's fundamental right guaranteed to him under Article 19(1)(f) of the Constitution. Reliance was placed on the decision of the Supreme Court in the case of Bhau Ram v. Baij Nath Singh being the decision of that Court, dated the 7th March, 1962, in Civil Appeal No. 270 of 1955 : (AIR 1962 SC 1476), in which it was laid down that any statute conferring a right of pre-emption based on vicinage must be held to impose an unreasonable restriction on the right guaranteed under Article 19(1)(f) of the Constitution. The challenge in that case was to a statutory provision whereby a right of pre-emption had been created. The contention of the appellant before the learned single Judge was that, inasmuch as the claim in the present case was founded on custom, the pronouncement of the Supreme Court should not be applied to the present case. The learned single Judge, whilst expressing the opinion that there seemed no good ground upon which the decision of the Supreme Court could be avoided, nevertheless thought it proper to refer the matter to a larger Bench. This is how this second appeal has come up before us.

2. We have heard learned counsel, Mr. Sadiq Ali, In support of this appeal. The only contention raised by Mr. Sadiq Ali was that the decision of the Supreme Court should be confined to cases where the claim for pre-emption is based on a statutory provision and that, therefore, that decision should not be construed as covering a case where the claim is founded on custom. We are unable to find any force in this argument. The word 'law' has been defined in Clause (3) (a) of Article 13 of the Constitution, which falls in Part III dealing with fundamental rights, as follows :-

' 'law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.'

Clause (1) of Article 13 runs as follows:--

'All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.'

It is, therefore, clear that, even though the claim in the present case is based on custom, if the custom itself is inconsistent with the fundamental rights guaranteed under Part III of the Constitution, that Custom would have to be held to be void. The decision of the Supreme Court in the case of C. A. No. 270 of 1955, D/- 7-3-1962 :(AIR 1962 SC 1476) (supra) that the custom of pre-emption based on vicinage imposes an unreasonable restriction on the rights guaranteed under Article 19(1)(f) of the Constitution must, therefore, be held to apply equally to a case where the claim for pre-emption is based on a custom of vicinage. In our opinion, therefore, the decision of the Supreme Court in the aforesaid case fully covers the present case. Indeed, a look at the judgment of the Supreme Court makes it clear that the question of claims based on custom was also considered and there is nothing in that judgment to indicate that their Lordships of the Supreme Court were inclined to a different view in respect of claims founded on custom. The result is that the custom on the basis of which the present claim was founded cannot be enforced. The preliminary objection raised on behalf of the defendant-respondent must, therefore, prevail.

3. This appeal consequently fails and is dismissed. We make no order as to the costs of this second appeal.